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Application for leave to appeal dismissed - 21 May 2015

On appeal from the Court of Appeal for Ontario. The applicant is Ms. Stevenson’s estranged husband. Ms. Stevenson was shot in the head as she was leaving for work. The applicant was arrested and charged with her murder. After a trial by judge and jury, the applicant was convicted of first degree murder. The conviction appeal was dismissed.

36277 Wayne Douglas Moshenko v. Her Majesty the Queen

Charter of Rights – Right to a fair hearing – Right to equality – Charge to jury – Jury selection

On appeal from the Court of Appeal for Saskatchewan. Mr. Moshenko was convicted of second degree murder, assault and breach of recognizance pertaining to a peace bond. He was tried by a judge and jury and was sentenced to life imprisonment with no parole eligibility for a period of 15 years. Mr. Moshenko appealed his conviction and sentence to the Court of Appeal. The appeal was dismissed.

36294 Vincorp Financial Ltd. v. Corporation of the County of Oxford, Corporation of the City of Woodstock

- and between -

Blandford Square Developments Limited v. Corporation of the County of Oxford, Corporation of the City of Woodstock

Municipal law – Expropriation

On appeal from the Court of Appeal for Ontario. In late 2004, Toyota Motor Manufacturing North America Inc. (“Toyota”) was searching for a site to build a new manufacturing plant in North America. It had a number of key requirements, including that the property had to be at least 1,000 acres in size. One of the sites that met Toyota’s requirements was located in Woodstock, Ontario. This site consisted of 28 separate properties, one of which was the “mall lands”, so called because it had a mall on the 91 acre lot. The applicant, Blandford Square Developments Limited (“Blandford”) was the registered owner of the mall lands and the applicant, Vincorp Financial Ltd. (“Vincorp”) was the holder of a first and second mortgage. In February 2005, the Corporation of the County of Oxford (“Oxford”) commenced the process of acquiring the 28 properties to provide for the development of the Toyota plant. Oxford negotiated the purchase of 27 of these parcels of land but was unable to negotiate the purchase of the mall lands. Oxford then undertook all necessary steps to expropriate those lands. A few months later, Oxford transferred the 1,000 acres, including the mall lands, to Toyota. Toyota proceeded to build a new manufacturing plant on the site. Oxford offered the applicants $4.2 million in compensation for the expropriated mall lands pursuant to s. 25 of the Expropriations Act, R.S.O. 1990, c. E.26 but it was not accepted. The applicants brought an action against Oxford, alleging that the transfer of the mall lands to Toyota was unlawful and without jurisdiction because it conferred a bonus on Toyota at their expense, contrary to s. 106 of the Municipal Act, 2001, S.O. 2001, c. 25. The parties submitted an agreed statement of facts and three questions to the court. The Ontario Superior Court of Justice found that the expropriation was lawful and that the purchaser did not receive a bonus on the transfer of land from the municipality. The applicant’s appeal was dismissed by the Court of Appeal for Ontario.

36317Dennis Gary Stewart v. Her Majesty the Queen

Charter of Rights – Right to counsel

On appeal from the Nova Scotia Court of Appeal. Mr. Stewart pleaded guilty to a series of summary and indictable offences involving what the sentencing judge described as “predatory sexual activity against children”. He also pleaded guilty to related indictable offences for breaches of undertaking and trafficking in a controlled substance. Mr. Stewart was sentenced to five years’ imprisonment. He then sought to appeal both his conviction and sentence.

Nova Scotia Legal Aid had agreed to represent Mr. Stewart, provided that his appeal was confined to sentence only. Initially, this was acceptable to Mr. Stewart, however shortly thereafter, Mr. Stewart sought to have a “state appointed lawyer” appointed by the Court of Appeal and he wished to appeal both his conviction and sentence. The legal aid lawyer was then withdrawn as solicitor of record for Mr. Stewart. Mr. Stewart then brought a motion to have counsel appointed pursuant to s. 684 of the Criminal Code. The request was denied by the Court of Appeal.

36318Outhonesavan K. Bounpraseuth v. York University

Charter of Rights – Right to security of the person – Summary judgments

On appeal from the Court of Appeal for Ontario. In the 2000s, the applicant was a student at York University who was dissatisfied with the grades he received in three of his courses. He alleged that he was entitled to graduate in 2004 and that the University failed to graduate him until 2010. He sought to appeal those grades through the University’s internal review process but was not happy with the result. Mr. Bounpraseuth brought an action against the University claiming damages because he lost five years of work experience and income because of the low marks and delay in graduation. The University brought a motion to strike his statement of claim. The University’s motion to strike the statement of claim was granted with no leave to amend and the Applicant’s action was dismissed. The Applicant’s appeal was also dismissed.

On appeal from the Court of Appeal for Ontario. The Respondent, Tarion Warranty Corporation (“Tarion”) commenced an action against the Applicants, Latreille and Benmiloud to recover monies it paid out of the Guarantee Fund established under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (“ONHWP Act”), in respect of warranty claims made by Ottawa Carleton Standard Condominium Corporation No. 737 (“OCC 737”). The warranty claims arose from alleged defects and deficiencies in the common elements of an 11 unit condominium building in Ottawa. The Condo Building was constructed by a now bankrupt corporation known as Domaines du Marche (“Domaines”). Domaines was registered with Tarion and was the builder, vendor and declarant of the condo. As a result, Tarion paid the cost to repair the warranted deficiencies out of the Guarantee Fund and then invoiced Domaines for these amounts. Those invoices were paid, to the extent of $220,000, by way of a drawdown on a letter of credit posted by Domaines. The remaining sum, approximately $111,000 remains outstanding.

Latreille is the indemnitor of Domaines. In this action, Tarion is suing Latreille to recover the remaining $111,000, pursuant to this indemnity. Tarion is also suing Benmiloud, who is the spouse of Latreille, to set aside an alleged fraudulent conveyance from Latreille to Benmiloud. Latreille argued that OCC 737 has no right of action for breach of warranty under the ONHWP Act in respect of the repairs to the common elements, because OCC 737 does not fall within the warranty provisions of the ONHWP Act. Latreille also filed a counterclaim for damages of $220,000 arising from the alleged improper drawdown of the letter of credit posted by Domaines.

Latreille and Benmiloud’s motion for summary judgment was dismissed. Latreille, as indemnifier for Domaines, was declared to be personally liable to make good to Tarion, any deficiency in respect of the warranty claims processed by Tarion for the common elements at OCC 737. Latreille and Benmiloud’s appeal was subsequently dismissed.

36280Labourers' International Union, Local 1208 v. Transport and Allied Workers, International Brotherhood of Teamsters, Local 855

Labour relations – Collective agreement – Dispute resolution

On appeal from the Supreme Court of Newfoundland and Labrador - Court of Appeal. The applicant (“Labourers”) and the respondent, (“Teamsters”) were involved in a dispute about the assignment of work at a construction project. In 2001, the Construction Labour Relations Association of Newfoundland and Labrador Inc. (“CLRA”) on behalf of unionized contractors and the Newfoundland and Labrador Building and Construction Trades Council on behalf of the trade unions entered into a project specific agreement at Carol Lake, Labrador. Article 5 of the Project Agreement set out a procedure by which jurisdictional disputes between the unions with respect to the work to be assigned to its members was to be resolved. The Labourers and the Teamsters had competing claims for jurisdiction over the assignment of truck drivers for the project. The contractor indicated in the work description that they were to build an access road which would require drivers to drive off highway trucks to haul ballast rock from a rock pile two kilometers from the construction site. The Teamsters contested the work assignment by the contractor to the Labourers and referred the dispute to the Umpire. The Umpire ruled that the contractor was to change the final assignment of truck drivers to the Teamsters. The Project Agreement provided the Labourers with recourse from the Umpire’s decision pursuant to a process commonly known as the “Green Book Plan”. The Labourers chose not to pursue the Green Book Plan option and sought judicial review and an order quashing the decision of the Umpire. The Supreme Court of Newfoundland and Labrador, Trial Division overturned the decision of the Umpire. On appeal, the appeal was allowed and the decision of the Jurisdictional Umpire was reinstated.

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